The coronavirus outbreak has changed a lot of things for most of us. Many employers have either cut employees’ salaries or not paid them at all and employees have become dependent on TERS contributions, which are far less than what they would ordinarily earn. As a result, many employees cannot make ends meet and some have turned to booking off sick in an attempt to curb expenses.
Socio-economic circumstances in South Africa deny the greater population access to private medical practitioners. Many professionals have cancelled their medical cover in an attempt to save on costs. The result is that people are reliant on clinics for medical attention where the employee is provided with a medical certificate which is, more often than not, signed by the clinic nurse. This poses an exceedingly frequent question amongst employers; What constitutes a valid medical certificate for purposes of sick leave?
If you were planning to skip out on work and stay home instead, keep reading. You may not be entitled to sick leave if placed under quarantine and/or because your medical certificate is not valid, and here’s why.
In terms of law, namely, Sections 22 (1) through 22 (4) are reasonably clear. During every 36 months cycle, commencing from the first day of employment, the employee is entitled to be given paid sick leave equal to the number of days they normally work in a six-week period. In terms of section 23(1) of the Basic Conditions of Employment Act, an employer may grant paid sick leave where an employee has been absent for more than two (2) consecutive days or on more than two occasions in an eight (8) week period if the employee produces a medical certificate stating that the employee was unable to work for the duration of the employee’s absence on account of sickness or injury.
Therefore, if the employee works a five-day week, then their sick leave entitlement in every 36 months cycle is 30 days on full pay. If they work a six day week, then their entitlement is 36 days on full pay.
During the first 6 months of employment, the employee is entitled to only 1 day paid sick leave for every 26 days worked. Any sick leave days taken during the first six months of employment is deducted from the full 36 months entitlement.
Payment for sick leave is calculated at the employee’s normal wage rate or normal salary. To convert monthly payment to a daily rate, the monthly gross before deductions is divided by 4.3, which gives a weekly rate, and when the weekly rate is divided by 5, it gives a daily rate. The daily rate is divided by the number of hours ordinarily worked in a day, to arrive at an hourly rate.
Weekly wages are simply divided by 5 to arrive at a daily rate. An agreement may reduce the pay to which an employee is entitled in respect of any day’s absence in terms of this section if: the number of days of paid sick leave is increased at least commensurately with any reduction in the daily amount of sick pay; and the employee’s entitlement to pay for any day’s sick leave is at least 75 percent of the wage payable to the employee for the ordinary hours the employee would have worked on that day; and for sick leave over the sick leave cycle is at least equivalent to the employee’s entitlement in terms of subsection (2).
Some employers and industries do have separate agreements as to how sick leave is managed, so it’s advisable to check what your entitlement is in terms of your employment contract and industry.
What constitutes a valid medical certificate?
Section 23 (2) of the Act is clear that there are two requirements in order for a medical certificate to be a valid medical certificate; it must state that the employee was unable to perform his or her normal duties as a result of illness (or an injury) and must be based on the professional opinion of the medical practitioner. In other words, a certificate that states that the practitioner “saw the patient” or “was informed by the patient” is not considered to be a valid medical certificates since the practitioner did not declare in his or her professional opinion that the employee was unable to perform their normal duties as a result of illness (or an injury). Such certificates are merely an indication that the practitioner saw the patient, in example a check up, or that he was informed that the patient was unfit for duty.
Section 23(2) of the Basic Conditions of Employment Act further states that a valid medical certificate must:
1) Be issued and signed by a medical practitioner; or
2) any other person who is certified to diagnose and treat patients; and
3) who is registered with a professional council established by an Act of Parliament.
Subsequently, it is an inherent requirement that the medical practitioner indicates the following on the medical certificate:
1) That the employee was unable to perform his/her duties as a result of sickness or injury; and
2) That the diagnosis is based on their professional opinion.
Therefore, it is necessary to establish whether the person who issued the medical certificate is either a medical practitioner in terms of the Act, a person certified to diagnose and treat patients, or a person registered with a professional council. The aforementioned requirement at this stage is still extremely vague to most employers. To clarify the issue, one has to look as to who the Act describes as a medical practitioner.
A medical practitioner, under the definitions of the Basic Conditions of Employment Act, means a person entitled to practise as a medical practitioner in terms of section 17 of the Medical, Dental and Supplementary Health Services Act 1974 (Act No. 56 1974), better known as the Health Professions Act.
The following medical practitioners may issue medical certificates under the Act:
1) A doctor in possession of an MBChB degree who is registered with the Health Professions Council of South Africa;
2) A dentist who is registered with the Health Professions Council of South Africa;
3) A psychologist in possession of a master’s degree in research, counselling or clinical psychology who is registered with the Health Professions Council of South Africa;
4) Traditional healer or health practitioner that is registered with the Traditional Health Practitioners Council of South Africa.
It is clear from the aforementioned that a doctor, a dentist and a psychologist qualify as a medical practitioner in terms of legislation, however, the door is left wide open for any other medical practitioners who are registered with the Health Professions Council of South Africa.
Section 17(2) of the Health Professions Act provides that any person desiring to register as a medical practitioner in terms of the Act shall apply to the registrar of the council. Section 17(3) of the Health Professions Act grants the registrar authority, upon receipt of the applicant’s qualifications and other documents, to issue the applicant a registration certificate authorising the applicant to practice the profession in which they applied for, if the registrar is satisfied that the applicant has satisfied the requirements.
Employers often find that employees who have been absent for a certain period, upon their return, provide a note from the clinic, which merely states that the employee visited the clinic on a specific day. As mentioned earlier, employers are unsure as to whether these certificates are valid for purposes of sick leave.
In summary, the first step to assess the validity of the medical certificate is to establish whether the person who issued or signed the certificate is a medical practitioner or not. As discussed above, such a person would be a doctor, a dentist or a psychologist. If the certificate was issued by a person other than the aforementioned, it is imperative that the certificate indicates that the person is indeed registered as a medical practitioner in terms of the Health Professions Act. The medical certificate should also indicate such a person’s practice number.
The second step to verify the validity of the medical certificate is to establish whether the certificate indicates that the employee was unable to perform his/her/their duties as a result of the sickness or injury. The diagnosis of the medical practitioner should, as mentioned earlier, be based on their professional opinion and not on the information provided by the patient/employee.
Medical certificates that comply with the above-mentioned requirements will only then be deemed valid and employers may then grant paid sick leave as contemplated in section 22 of the Basic Conditions of Employment Act.
Traditional Healer Certificates
In terms of the requirements in the BCEA, a traditional healer would need to be registered with the Traditional Health Practitioners Council of South Africa in order to issue valid medical certificates. However, the interim Traditional Health Practitioners Council, which was established in 2014, does not have a website and no register is readily available which contains a list of registered traditional health practitioners. In these circumstances, the employee and the traditional health practitioner will have to present proof that he or she is registered for the medical certificate to be valid.
Nevertheless, the courts have indicated that employers should still exercise sensitivity and adopt an investigative approach when a note or certificate of a traditional healer is presented instead of summarily rejecting it.
In the case of Kiviets Kroon Country Estate (Pty) Ltd v Mmoledi & others [LAC] JA78/10)
The facts of the case:
Kiviets Kroon dismissed an employee for staying away from work. She had a medical certificate from a traditional healer. It said she had ‘premonitions of ancestors’.
The CCMA and the Labour Court said the dismissal was not justified. They said she had a justifiable reason for not being at work. Kiviets Kroon took the case on appeal to the Labour Appeal Court (LAC). The LAC said the Constitution recognises traditional beliefs and practices, so employers should also accept these beliefs, too.
In this case, the employee did not undergo ‘medical treatment’. She was off for cultural, traditional belief or ancestral consultation. The employee’s case was about her cultural and traditional beliefs. She said she was in consultation with a Traditional Healer. This was to help her with training that would qualify her to be a Sangoma, because she had a calling from her ancestors.
Based on this, employers can no longer refuse to accept a traditional healer’s certificate when it comes to the granting of sick leave, or even to justify absence from work. Furthermore, on 30 April 2014, the President signed the Traditional Health Practitioners Act.
From 1st May 2015 traditional health practitioners must register with the Council.
This allows traditional health practitioners’ medical certificates to become proof of incapacity.
After registration with the Traditional Health Practitioners Council of South Africa, the traditional healer must conform to the requirements for payment of sick leave, just like any other medical practitioner.
Regarding medical certificates issued by a clinical hospital, it is normally found that the certificates are not signed by a registered medical practitioner. Every clinic and every hospital has qualified medical practitioners in attendance, and any person who is ill must be examined by such a person.
An examination by a nurse or other person who is not qualified to carry out examination and diagnosis is not acceptable. The above recognition, however, is subject to an important proviso as the SANC has recommended that a professional nurse practitioner should only issue a medical certificate for a period not exceeding a maximum of two (2) days. If the patient’s condition has not improved after this period the patient should be referred to a medical practitioner or to the next level of care.
A certificate signed by a person other than a qualified medical practitioner who is authorised to make such examination and diagnosis is equally unacceptable.
This means that any certificate bearing an illegible signature and a rubber stamp is unacceptable and in such cases you must insist that the rule 15 (1)(j) of the Medical and Dental Professions Board Rules are complied with, otherwise the period of illness must be treated as unpaid leave.
Remember also that there are occasions where an employee takes only one day or two days off sick and is not required to produce a medical certificate, those days remain classified as sick leave days and are deductible from the employees sick leave entitlement.
The following excerpt from the Ethical and Professional Rules of the Medical and Dental Professions Board of the Health Professions Council of South Africa can further serve as guidelines for employers in order to determine the validity of a medical certificate.
Rule 15(1) A practitioner shall only grant a certificate of illness if such certificate contains the following information, namely:
(a) the name, address and qualification of the practitioner;
(b) the name of the patient;
(c) the employment number of the patient (if applicable);
(d) the date and time of the examination;
(e) whether the certificate is being issued as a result of personal observations by the practitioner during an examination, or as the result of information received from the patient and which is based on acceptable medical grounds;
(f) a description of the illness, disorder or malady in layman’s terminology with the informed consent of the patient: Provided that if the patient is not prepared to give such consent, the medical practitioner or dentist shall merely specify that, in their opinion based on an examination of the patient, the patient is unfit to work;
(g) whether the patient is totally indisposed for duty or whether the patient is able to perform less strenuous duties in the work situation;
(h) the exact period of recommended a sick leave;
(i) the date of issuing of the certificate of illness; and
(j) a clear indication of the identity of the practitioner who issued the certificate which shall be personally and originally signed by him/her/them next to his/her/their initials and surname in printed or block letters .
(2) If pre-printed stationery is used, a practitioner shall delete words which are irrelevant.
(3) a practitioner shall issue a brief factual report to a patient where such a patient requires information concerning him/her/themself.
The above is largely self explanatory. Rule (e) refers to those occasions where, for example, the employee has been off sick on Monday and Tuesday and then on Wednesday they go to the Doctor and inform the Doctor that they’ve had flu since Monday and require a sick note. The Doctor will then normally write in the sick note that “I was informed that the patient etc.”
You do not have to accept this as genuine illness. The Doctor is only telling you that the patient said they were ill. The Doctor is not certifying that they made an examination and were able to confirm the illness.
You would therefore be perfectly justified in informing the employee that the time taken off will be regarded as unpaid leave and that in future they should visit the Doctor on the first day of illness and not after they have recovered from the alleged illness.
Rule (f) states that the Doctor should give a description of the illness. This may not always be stated, particularly where the nature of the illness, if disclosed, may embarrass the patient.
If there is an extremely good reason, for example if an employee is regularly off sick, then the employer may assist the employee in typing a letter (which the employee must sign) for the Doctor, authorising the Doctor to disclose to the employer the nature of the employee’s illness. Alternatively, an employer may request the employee to go to the Doctor and obtain the information in terms of rule (3).
Note that in terms of rule (j) the medical practitioner is required to print his name and initials on the medical certificate in addition to his usual signature.
Remember also that these rules are not law, they can be used as guidelines. The medical profession agreed to these rules for the guidance of the medical profession only.
Therefore an employer cannot reject a medical certificate if it does not comply with these rules. An employer can only reject a medical certificate if it does not comply with section 23 of the Basic Conditions of Employment Act.
Can I claim sick leave if I have symptoms of Covid-19 and have to stay at home?
By law, an employee must be placed on sick leave if they present with symptoms of Covid-19. Your employer must also ensure that you are tested or referred to an identified testing site. (This doesn’t have to be at the employers’ expense)
Your employer can require proof of illness if you are absent for more than two days and they are not required to pay you unless you can produce a valid medical certificate.
Should your sick leave be exhausted, an employee can claim an ‘illness benefits’ from the UIF Ters scheme, for the quarantine period or if you test positive for coronavirus.
What happens if you contracted Covid-19 at work?
Covid-19 has recently been declared an occupational disease in terms of the Compensation for Occupational Injuries and Diseases Act (COIDA). This means that if an employee is absent from work due to contracting the virus during the course and scope of their employment, such leave will be covered in terms of COIDA.
COIDA stipulates that sick leave does not apply to an inability to work caused by an accident or occupational disease. You therefore don’t have to use your sick leave allocation.
“In terms of the COIDA notice, payment for total temporary disablement will be made by the Compensation Fund for as long as the disablement continues (i.e. as long as the employee is booked off), but not for a period exceeding 30 days.”
In suspected or unconfirmed cases (where there is no positive diagnosis), a medical practitioner may recommend self-quarantine. According to the COIDA notice, the employer is responsible for remunerating the employee in these circumstances.
So, please avoid purchasing fraudulent medical certificates and check that the medical certificate you provided is valid before submitting it to your employer. Handing in a fraudulent medical certificate can be seen as a dismissible offence. Seek legal advice or advice from your HR if you are uncertain about anything related to what your rights are during this Pandemic.